The Return Of The Living Dead: Publicity Rights Legislation Continues To Grant Protection To Famous Corpses

from the millions-now-living-will-never-die dept

Hologram* Tupac's appearance at Coachella has brought more attention to the inexact science of publicity rights than anyone could have imagined. While not necessarily a "one-off," the whole experience had the gimmicky feel of a small triumph of technology over death.

Several months down the road and dead celebrities (or rather, their representatives) are fighting back, sending cease-and-desist letters and asserting their publicity rights as a defense against marauding technologists and their holographic emissaries.

The estate of Marilyn Monroe is currently engaged in a legal battle with Digicon Media over possible future digital representations of the dead actress. Digicon cites its 1996 digital representation, "VM2 - The Virtual Marilyn" as proof that it holds the copyright and trademark on digital representations of Marilyn Monroe. It also points out that since the Monroe estate raised no legal challenge during the previous 15 years of development, the statute of limitations has expired and it can proceed unchallenged.

Things are never that simple when IP meets dead celebrities and their "handlers." Monroe's estate argued that Digicon had similarly done nothing over the last 15 years, hence the lack of legal noise. Digicon pushed back, pointing out that New York doesn't recognize publicity rights, a fact that Monroe's estate should have considered when they relocated her "domicile" in order to dodge California's estate taxes.

AV Concepts, the company behind the Tupac Non-Hologram has plans to craft digital versions of Michael Jackson, Elvis Presley and Jimi Hendrix. (Oh, and their own Marilyn Monroe.) It's tough to imagine many of these being granted permission from the various estates, as the company is either working from a list titled "Most Recalcitrant Estates" or figures rejection is the best teaching tool.

Maybe all AV Concepts will need is a change of venue. As Slate points out, many states do not recognize post-mortem "publicity rights." In fact, most don't. Only 18 states are willing to grant the dead control over their images. Those that do seem to have followed Sonny Bono's example: dead celebrities (and their estates) are covered for at least 70 years after death. (Tennessee takes this to the illogical conclusion: postmortem publicity rights in that state run death+forever.)

The fact that a famous person could just lapse into the public domain (for lack of a better term) is apparently unacceptable to some existing celebrities. Comedian Bill Cosby is one of them. His concern that "opportunists would one day use his name and image to promote stuff he'd never want to be associated with" was the impetus behind a piece of legislation recently passed by the Massachusetts' senate.

To date, 13 states have passed laws that take this notion a step further, and explicitly make the rights to a person’s identity a piece of property transferable after death, not unlike a car, a house, or a gold watch. They are even transferable in advance, while the person is alive.

While it may seem perfectly normal that a celebrity wouldn't want his or her likeness resurrected to pitch dubious products and services, the unintended consequence is another chilling effect, one that can be leveraged to shut down any posthumous project that doesn't toe the estate line. In addition to IP-as-enforcement, there's the effect it has on the rest of the living. When other IP-protection beneficiaries are claiming a piece of IP-protecting legislation goes too far, this usually indicates a serious problem.

Critics imagine a world in which costume shops can’t dress kids up as Humphrey Bogart for Halloween, pop stars can’t borrow dance moves from Michael Jackson, and college political clubs can’t sell T-shirts emblazoned with John F. Kennedy’s face without paying a licensing fee for the privilege.

Other pushback has come from movie studios, book publishers, and newspapers, concerned that overly strict protections will limit free speech and artistic creation.

Of course, exemptions are granted.

In response to concerns voiced by media organizations like the Motion Picture Association of America, most such laws—including the Massachusetts bill—are written with specific exemptions for creative endeavors, including books, movies, music, and commentary.

This usually means "industries" and not "individuals." This certainly doesn't mean John Q. Nobody can dash off a line of fiction involving dead celebrities unhassled. It simply gives the writer a bit of legal standing should the inevitable lawsuit be raised.

But say you wanted to write a play about a chance meeting between these two historic figures. Could you? While the play itself may be protected by the First Amendment, that doesn’t mean that the companies that manage Parks and Einstein might not attempt to assert control. Hebrew University has aggressively defended Einstein’s image, even blocking its use on a book called “Everything’s Relative.” And don’t expect to sell programs, posters, T-shirts or the other paraphernalia that might support your play without getting approval and paying whatever fee the owners of Parks’s and Einstein’s rights of publicity demand.

“We get countless calls about people who are famous and passed away to ask us if we can magically turn them into a brand and so forth—and that’s very seldom possible,” says Mark Roesler, the intellectual property lawyer who has become perhaps the most prominent avatar of the dead celebrities industry. Roesler, the head of CMG Worldwide, was hired by the James Dean estate in the 1980s to handle licensing, and his company has since added hundreds of deceased stars to its roster.

Occasionally, CMG has even acquired the rights to deceased celebrities’ images outright, including that of model Bettie Page—Playboy’s Miss January in 1955—who died in 2008. (A Bettie Page-branded store is scheduled to open on Newbury Street in Boston this fall.) “She didn’t have any children, and she wanted to be remembered as the pinup queen that she was, and the legend that she was, and she asked us if she left her intellectual property rights to us, if we’d continue to protect them,” Roesler said.

The supporters of publicity rights legislation make a seemingly good point: let's protect the dead from being abused without hope of recourse. It seems like the "right" thing to do, but the reality of the situation is that these laws encourage abuse from estate holders, most of whom look to set up toll booths everywhere and shut down any use they don't agree with.

But some critics see the problem in more philosophical terms, arguing that no matter how many exemptions are made, such laws still privatize something that ought to be considered part of the public’s cultural heritage. One illustration of this involved Martin Luther King, whose family was paid an $800,000 licensing fee when a foundation building a memorial in King’s honor in Washington, D.C., wanted to use the civil rights leader’s face on fund-raising materials.

It's not as if a majority of the world is simply scanning the obituaries and firing up the screen printer. The effects of locking down every single aspect of a human being and their creative endeavors for a minimum of a lifetime plus 70 years is more subtle and far-reaching than simple hearse-chaser profiteering.

“My concern is over the continued development of popular culture,” said David Wall, a professor at Durham University in England who studies the sociology of law, in an e-mail. Popular culture, he points out, is essentially a huge blender of borrowed influences. “The big [question] is whether Elvis could become Elvis in this modern world. His hair colour and flick were copied off his child idol, Captain America; his clothes style and dance were drawn from contemporary black fashion, but especially Jackie Wilson....No celebrity image comes out of the blue.”

Culture builds on culture. Locking away more and more of it for longer and longer periods of time has a deleterious effect on future creative endeavors. To build on previous culture to sustain your own career and then spin around and lock down everything you can for several decades is disingenuous to say the least. Culture isn't just about taking. It's also about giving. Leaving a legacy behind for your fellow artists to appreciate, share and build on is supposed to be the rule, not the inadvertent result of dying in the wrong state.

Reader Comments

A bit of logic, please ?

"opportunists would one day use his name and image to promote stuff he'd never want to be associated with"
A moment's thought would show that what "he'd want to be associated with" can only actually be determined while he's still alive (and able to make those sort of decisions), making the whole idea self-contradictory.